DATED2004
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DATED2004
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(1)
CLP
DEVELOPMENTS LIMITED
(2) CLP
ENVIROGAS LIMITED
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DEVELOPMENT
SERVICES SUBCONTRACT
relating
to the development of additional electricity
generation
plants on behalf of certain within mentioned
Project
Companies
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EVERSHEDS
LLP
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Xxxxxxxxxx
X0
0XX
Tel:
x00 000 000 0000
Fax:
x00 000 000 0000
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bir_corp\719017\3
THIS
AGREEMENT
is made
the day of 2004
BETWEEN
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(1)
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CLP
DEVELOPMENTS LIMITED
a
company incorporated in England and Wales with company number 4502342
whose registered address is situate at Xxxxx 00-00, Xxxxxxxxxxx,
Xxxxxx
Technology Exchange, Xxx Xxxx, Xxxxxx XX0 0XX (“CLP”);
and
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(2)
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CLP
ENVIROGAS LIMITED
a
company incorporated in England and Wales with company number 03720203
whose registered address is situate at Xxxxx 00-00, Xxxxxxxxxxx,
Xxxxxx
Technology Exchange, Xxx Xxxx, Xxxxxx XX0 0XX (“the
Subcontractor”).
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WHEREAS
(A)
Each
Project Company:-
(i)
owns
an
operating electricity generating plant that uses landfill gas extracted from
a
landfill site pursuant to an existing NFFO Power Purchase Agreement; or
(ii)
has
committed to build an electricity generating plant at a site in order that
it
may sell the output of the plant under an existing NFFO Power Purchaser
Agreements; or
(iii) neither
owns nor has committed to build electricity generating plant pursuant to a
NFFO
Power Purchase Agreement but has a landfill site from which landfill gas may
be
extracted
(and
in
the case of each of (i) and (ii) above such existing or proposed electricity
generating plants including their associated gas extraction, collection, burning
and handling equipment, transformers, switchgear and other associated plant,
machinery infrastructure equipment and apparatus from time to time shall be
hereinafter referred to as an “Existing Plant”)
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(B)
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Each
Project Company with Existing Plant is desirous of adding additional
generating capacity and additional infrastructure improvements at
its Site
so that such Project Company might use the surplus landfill gas to
generate additional electricity and each Project Company with no
Existing
Plant is desirous of constructing, developing and operating electricity
generating equipment at its Site in order to generate new electricity,
such electricity to be sold, along with its environmental attributes,
to
one or more third parties.
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(C)
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CLP
has entered into an agreement with Ridgewood dated on or around the
date
hereof (“Development
Services Agreement”)
pursuant to which CLP has been engaged to bring about the Commissioning
of
additional electricity generation plants in order that the Project
Companies may utilise the landfill gas extracted from the Site as
stated
in Recital (B).
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(D)
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It
is the intent of the parties hereto that Ridgewood will at all times
and,
for the avoidance of doubt, during any period of development following
the
date hereof and after Commissioning, be the legal owner of the
Equipment.
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(E)
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The
parties have agreed that CLP shall subcontract its obligations under
the
Development Services Agreement to the Subcontractor on the following
terms
in
order to bring about Commissioning.
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| 1. |
INTERPRETATION
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| 1.1 |
Definitions
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In
this Agreement and the Schedules hereto the following words and expressions
shall, unless the context otherwise requires or is inconsistent therewith,
have
the following meanings:-
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“CLP
Representative”
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means
Xxxxxxx Xxxxxxxxx or such other authorised representative of the
Subcontractor as shall be nominated by it in substitution for such
person;
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“Commissioning”
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means
the stage at which the installation of the Equipment at the relevant
Project Company Site has been completed and the New Project has been
consistently (over a period of 7 days) exporting electricity to the
National Grid and Commissioned shall have the appropriate
meaning
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“Equipment”
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means
in relation to any New Project, the electricity generating facilities
together with all and any gas extraction equipment, blower fans,
xxxxx,
pipes and the transformers to connect the power generation equipment
to
the electricity distribution system installed or constructed on the
relevant Site (other than, for the avoidance of doubt, the Existing
Plant);
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“Export
Capacity”
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means
the amount of electricity expressed in megawatts the Equipment is
capable
of exporting to the National Grid on a consistent basis assuming that
the Equipment is operating to its maximum capacity;
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“Fees”
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means
the fees payable by CLP to the Subcontractor pursuant to Clause
7;
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“Group
Company”
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means
the Subcontractor and any holding company of the Subcontractor and
its/their respective subsidiaries from time to time;
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“New Project”
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means,
in relation to any Project Company, the project for the procurement,
design, construction, installation, development and Commissioning
on a
“turnkey” basis of the Equipment and all associated equipment to be
supplied by the Subcontractor to CLP at a given Site;
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“NFFO
Power Purchase Agreement”
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means
contracts with The Non Fossil Purchasing Agency Limited and those
in
connection with Scottish renewable orders including any replacement
contract with the Non Fossil Purchasing Agency Limited concluded
in
connection with the implementation of the new British Electricity
Trading
and Transmission Arrangements in Scotland presently targeted for
on or
around April 2005;
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“Project
Budget”
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means
in relation to any New Project, the budget of necessary expenditure
required to bring about the Commissioning of the same, as prepared
by CLP
and agreed with Ridgewood’s Representative;
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“Project
Companies”
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means
those companies listed in Schedule 1 any company that may accede
to the
Project Development and Services Agreement in accordance with the
provisions set out therein and each one a “Project
Company”;
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“Project
Development and Services Agreement”
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means
an agreement between Ridgewood, , CLPE ROC -2 Limited, CLPE ROC -2A
Limited and various Project Companies defined therein pursuant to
which
Ridgewood agreed to, inter alia, to procure, construct, install,
engineer
and develop the Equipment to Commissioning;
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“Project
Timetable”
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means,
in relation to any New Project, the timetable of principal events
in
bringing about Commissioning of the same as is set out in Schedule
2 or
any changes thereto prepared by CLP and agreed with Ridgewood’s
Representative;
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“Ridgewood”
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shall
mean Ridgewood ROC II 2003 LLC a body corporate incorporated with
limited
liability in the state of Delaware, U.S.A whose registered address
is
situate at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX, 00000,
XXX
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“Ridgewood’s Representative”
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means
Xxxxx Xxxxxxx or such other director, employee or authorised
representative of Ridgewood as shall be nominated by Ridgewood in
substitution for such person;
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“Services”
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means
the services to be provided by the Subcontractor under this Agreement
as
described in Schedule 3;
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“Site”
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means,
in relation to any New Project, the landfill site on which the Equipment
concerned is to be constructed and/or installedd;
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“Subcontractor’s
Representative”
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means
Xxxx Xxxxxxxxx or such other authorised representative of the
Subcontractor as shall be nominated by it in substitution for such
person;
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| 1.2 |
Words
and expressions defined in the Companies Xxx 0000 (as amended) (the
"Companies
Act")
shall (unless the context clearly does not so permit) bear the same
meanings where used in this
Agreement.
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| 1.3 |
The
ejusdem generis rule of construction shall not apply to this Agreement
and
accordingly general words shall not be given a restrictive meaning
by
reason of their being preceded or followed by words indicating a
particular class or examples of acts matters or
things.
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| 1.4 |
Words
importing the singular shall include the plural and vice versa and
words
importing any gender shall include all other genders and references
to
persons shall include corporations and unincorporated
associations.
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| 1.5 |
References
in this Agreement to statutory provisions shall be construed as references
to those provisions as respectively amended consolidated extended
or
re-enacted from time to time and shall include the corresponding
provisions of any earlier legislation (whether repealed or not) and
any
orders regulations instruments or other subordinate legislation made
from
time to time under the statute
concerned.
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| 1.6 |
References
to this Agreement shall include the Schedules hereto which shall
form part
hereof and shall have the same force and effect as if expressly set
out in
the body of this Agreement.
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| 1.7 |
The
Clause headings in this Agreement are for convenience only and shall
not
affect the interpretation hereof.
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| 2. |
APPOINTMENT
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CLP
hereby appoints the Subcontractor and the Subcontractor agrees to
accept
such appointment and to perform the Services on behalf of CLP in
respect
of each New Project upon the terms and conditions set out in this
Agreement so as to enable the procurement, design, construction,
installation, development and Commissioning of Equipment at the Site,
or
such works on behalf of CLP as may be agreed in writing between CLP
and
the Subcontractor.
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| 3. |
SERVICES
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| 3.1 |
Subject
to Clause
3.2,
the Subcontractor will provide the Services in relation to each New
Project causing the minimum amount of disruption to the operation
of the
Existing Plant as possible. In relation to any New Project, the list
of
services set out in Schedule 3 may be amended at any time and from
time to
time by written agreement between CLP and the Subcontractor in respect
of
all or any one New Project.
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| 3.2 |
Where
at the date hereof, some Equipment exists at a Site then, upon payment
of
the fee payable in accordance with Clause
7.1,
the Subcontractor will transfer or cause to be transferred to Ridgewood
legal title to such Equipment and CLP shall procure that Ridgewood
shall
make all such Equipment available to the Subcontractor to complete
Commissioning in accordance with the terms
hereof.
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| 4. |
SUBCONTRACTOR’S
AUTHORITY
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| 4.1 |
The
Subcontractor shall have the authority to act on behalf of CLP as
its
agent solely to the extent reasonably necessary for the Subcontractor
to
carry out its duties and to provide the Services hereunder and for
no
other purpose.
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| 4.2 |
CLP
shall indemnify and keep indemnified the Subcontractor for any loss,
damage, costs and expenses suffered or incurred by it as a result
of the
Subcontractor acting or purporting to act on behalf of CLP where
the
Subcontractor has been authorised in so acting, either pursuant to
Clause
4.1
or
otherwise.
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| 4.3 |
The
Subcontractor shall be entitled to hold itself out as agent of CLP
for the
purposes of properly carrying out the Services in relation to each
New
Project and Ridgewood shall confirm the appointment of the
Subcontractor.
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| 4.4 |
At
no time shall the Subcontractor claim ownership of or any right,
title or
interest to the Equipment and the Subcontractor shall do all such
acts and
enter into such documents as may be reasonably necessary and always
at the
expense of CLP to vest ownership of the Equipment in
Ridgewood.
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| 5. |
LEVEL
OF CARE AND APPLICATION OF
RESOURCES
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| 5.1 |
In
carrying out the Services the Subcontractor shall exercise such reasonable
skill, care and diligence to be expected of a competent consultant
and
project manager experienced in undertaking services similar to the
Services in relation to projects of a similar size, scope and complexity
to the New Projects.
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| 5.2 |
The
Subcontractor shall make all necessary visits to each Site for the
proper
performance of the Services, to inspect the progress and quality
of the
development of the New Project thereat and generally to ensure the
proper
execution and Commissioning of that New
Project.
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| 5.3 |
The
Subcontractor shall devote sufficient resources to perform the Services
in
accordance with the terms hereof.
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| 6. |
UNDERTAKINGS
OF CLP
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CLP
undertakes to provide the Subcontractor with all information as may be relevant,
required, requested or of assistance to the Subcontractor in the performance
of
the Services.
| 7. |
FEES
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| 7.1 |
Subject
to the provisions of Clause
3.2,
the fees payable to the Subcontractor for the provision of the Services
in
relation to the New Projects hereunder (exclusive of VAT) shall be
calculated on a time and materials basis.
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| 7.2 |
Subject
to Clause
12.6 at
the end of each month the Subcontractor shall submit an invoice to
CLP for
the amount due in respect of Services carried out and work undertaken
pursuant to this Agreement in the preceding month: such amount to
reflect:-
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| 7.2.1 |
the
value of work properly executed based on the daily rates agreed between
the parties from time to time;
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| 7.2.2 |
the
cost to the Subcontractor of providing goods, materials, equipment
and
other resources necessary for the proper execution of the Services
pursuant to this Agreement;
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| 7.2.3 |
all
other costs properly and necessarily incurred by the Subcontractor
in
providing the Services pursuant to this
Agreement.
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| 7.3 |
Invoices
submitted to CLP shall be paid within 30 days of the date of the
invoice.
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| 7.4 |
Subject
to clause
7.5
and 7.6
if
the Fee or any part thereof is not paid on the due date, CLP shall
be
liable to pay interest on such sum from the due date of payment at
the
annual rate of 2 percent above the base lending rate from time to
time of
Barclays Bank plc, accruing on a daily basis until payment is made
in
full.
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| 7.5 |
In
the event of a dispute over the amount due to the Subcontractor as
set out
in an invoice, each of the CLP Representative and the Subcontractor
Representative shall meet and in good faith seek to agree the amount
payable to the Subcontractor. CLP shall on reasonable notice to the
Subcontractor have the right to access all the books and accounts
of the
Subcontractor in order to facilitate such
agreement.
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| 7.6 |
If
after 28 days following the issue of the relevant invoice the parties’
Representatives fail to reach agreement over the amount due, either
party
may refer the dispute to an independent adjudicator who, if not agreed
between the parties, shall be appointed by the Chairman of the Institute
of Civil Engineers upon application by either of them. Such adjudicator
shall, on reasonable notice to the Subcontractor have the right to
access
all the books and accounts of the Subcontractor to determine the
proper
amount due to the Subcontractor in accordance with this Agreement.
The
adjudicator shall consider the dispute in accordance with the Institute
of
Civil Engineers Conciliation Procedures (in force from time to time)
and
shall act as expert not as arbitrator and his decisions shall be
final and
binding save in the case of manifest error. The costs of the adjudicator
shall be borne equally by CLP and the
Subcontractor.
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| 7.7 |
The
Subcontractor shall pay to CLP with respect to each New Project,
an amount
in lieu of interest equal to 0.8333 per cent per month (or part thereof)
on all amounts advanced to the Subcontractor by CLP as progress payments
with respect to such New Project, such interest to accrue up to the
earlier of (i) the date of Commissioning (ii) the date, if any, upon
which
the Equipment is resited under Clause
10.2
and (iii) the Relevant Project Company Long Stop Date (as referred
to in
the Development Services Agreement)..
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| 8. |
DURATION
OF APPOINTMENT
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| 8.1 |
Subject
to Clause 8.2,
this Agreement shall remain in effect in relation to each New Project
until the New Project concerned has reached Commissioning or until
it is
agreed between the parties that there is no reasonable prospect of
that
New Project Commissioning and the Subcontractor shall not be entitled
to
terminate this Agreement except as otherwise provided herein.
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| 8.2 |
CLP
may terminate this Agreement by giving 20 days' notice in writing
if the
Subcontractor shall commit a material breach of its obligations hereunder
and shall fail to remedy such breach within a reasonable time of
notice of
such breach being given to it. The right to terminate this Agreement
granted to CLP under this Clause 8.2
shall be without prejudice and in addition to any other remedies
available
to CLP in respect of such breach but subject always to the provisions
of
Clause
14.4.
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| 8.3 |
The
Subcontractor may terminate this Agreement by giving 20 days’ notice in
writing if CLP shall commit a material breach of its obligations
hereunder
and shall fail to remedy such breach within a reasonable time of
notice of
such breach being given to it. The right to terminate this Agreement
granted to the Subcontractor under this Clause
8.3
shall be without prejudice and in addition to any other remedies
available
to the Subcontractor in respect of such
breach.
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| 9. |
THE
SUBCONTRACTOR’S
PERSONNEL
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| 9.1 |
The
Subcontractor shall use reasonable endeavours to procure that the
Subcontractor’s Representative is fully acquainted with all matters
relating to the development of the New Projects and shall devote
proper
attention to the Services.
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| 9.2 |
The
Subcontractor shall be under no obligation to provide the Services
through
any particular person and the Subcontractor shall be entitled to
change
the personnel engaged in the performance of the Services without
first
notifying CLP.
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| 10. |
PROJECT
TIMETABLES AND PROJECT
BUDGETS
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| 10.1 |
The
Subcontractor shall use reasonable endeavours to ensure that the
development of each New Project is carried out in accordance with
the
Project Timetable for that New Project, subject to the terms
hereof.
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| 10.2 |
If,
prior to Commissioning, CLP wishes to re-site any Equipment whether
at
another Project Company or elsewhere or if it wishes to substitute
any
Project Company then, the Subcontractor shall be entitled to invoice
CLP
for an amount equal to the cost incurred by the Subcontractor in
such
re-siting or substitution PROVIDED
ALWAYS
that CLP and the Subcontractor shall negotiate in good faith to agree
such
cost and, if no agreement can be reached, then the Subcontractor
shall be
under no obligation to re-site the Equipment or substitute the Project
Company.
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| 11. |
COMMUNICATIONS
PROCEDURES
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| 11.1 |
The
Subcontractor Representative shall meet with CLP’s Representative and
Ridgewood’s Representative monthly to report on and review the progress in
the development of the New Projects. Such meeting to take place either
in
person or by telephone with in person meetings taking place at CLP’s
office in Bolton, a Site or in such other location as the Representatives
may agree.
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| 11.2 |
The
Subcontractor shall inform CLP as soon as reasonably practicable
if it has
reason to suspect that it may prove impossible or impracticable to
complete any New Project within the relevant Project
Timetable.
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| 12. |
ASSIGNMENT,
DELEGATION AND
ACCESSION
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| 12.1 |
CLP
shall not without the prior written consent of the Subcontractor
assign or
delegate any of its duties under this Agreement to any other person,
firm
or company.
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| 12.2 |
The
Subcontractor may assign or delegate any of its duties under this
Agreement without first notifying CLP or to any other company provided
always that:
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| 12.2.1 |
the
Subcontractor may only assign or delegate such duties to a company
being a
Group Company;
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| 12.2.2 |
CLP
shall accept the performance by any such other Group Company of such
duties as performance by the Subcontractor;
and
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| 12.2.3 |
CLP
shall continue to pay the Fee in accordance with Clause
7 to
the Subcontractor or as the Subcontractor may instruct
Ridgewood.
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| 12.3 |
The
Subcontractor may subcontract or delegate any of its duties under
this
Agreement to a company not being a Group Company with the prior written
consent of CLP, such consent not be unreasonably withheld or
delayed.
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| 12.4 |
The
Subcontractor hereby acknowledges that the identity of the Project
Companies set out in Schedule 1 may change insofar as CLP can substitute
a
Project Company currently set out in Schedule 1 prior to its Commissioning
with another company on a one for one basis. The Subcontractor agrees
to
provide the Services to the Project Companies listed and any additional
company listed in Schedule 1 in substitution for a company that is
currently listed. If CLP exercises its option to substitute a Project
Company currently listed in Schedule 1 for another company, the Project
Company to be substituted shall be deleted from Schedule 2 and the
new
company shall be inserted into Schedule 2 and CLP shall stipulate
the
information to be inserted into Schedule 2 in respect of the company
that
is added to Schedule 2.
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| 12.5 |
Where
a Project Company is removed from Schedule 1, any rights, obligations
and/or liabilities that the parties hereto have to or against the
other in
respect of that Site , other than the rights, obligations and liabilities
pursuant to Clauses
10.2
and 14.3,
shall be waived by the parties hereto.
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| 12.6 |
Where
CLP exercises its right to substitute a Project Company pursuant
to
Clause
12.4
above, any sums paid to the Subcontractor by CLP pursuant to Clause
7.1
in
respect of the substituted Project Company (“the Prepayments”) shall be
deemed to be a pre-payment in respect of the Services undertaken
by the
Subcontractor in respect of the new company and the Project Manager
agrees
that no invoices shall be issued pursuant to Clause
7.2
until the accrued fees in respect Services provided to such new company
exceed the Prepayments, whereupon the excess shall be invoiced pursuant
to
Clause
7.2
and the provisions of Clauses
7.2 to 7.6
shall mutatis mutandis apply.
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| 13. |
CONFLICT
OF INTEREST
|
The
Subcontractor shall not be prohibited from entering into further consultancy
agreements similar to this Agreement with other parties for the purposes of
developing, managing and commissioning or consulting on other projects of a
similar nature to the New Projects.
| 14. |
LIMITATION
OF LIABILITY
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| 14.1 |
The
Subcontractor will use reasonable endeavours to deliver the Services
hereunder within the time agreed and to the standard agreed and,
if no
time or standard is agreed, then within a reasonable time and to
a
reasonable standard. If despite those endeavours the Subcontractor
is
unable for any reason other than the Subcontractor’s wilful default, to
deliver such Services the Subcontractor will be deemed not to have
breached this Agreement.
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| 14.2 |
It
is agreed that the Subcontractor will have no liability to CLP for
direct,
indirect or consequential loss (all three of which terms includes,
without
limitation, pure economic loss, loss of profits, loss of business,
depletion of goodwill and like loss) howsoever caused save that the
Subcontractor does not exclude its liability (if any) to CLP for
any
direct loss arising from the Subcontractor’s wilful default (but, for the
avoidance of doubt, the Subcontractor does exclude liability for
any
indirect or consequential loss that may arise from such wilful default)
and for personal injury or death resulting from the Subcontractor’s
negligence, fraud or for any matter which it would be illegal for
the
Subcontractor to exclude or to attempt to exclude its
liability.
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| 14.3 |
CLP
agrees to indemnify and keep indemnified and hold the Subcontractor
harmless from and against all and any claims, awards, penalties,
damages
or loss (including professional costs) whatsoever and howsoever caused
as
a direct or indirect result of any damage or loss (including, without
limitation, pure economic loss, loss or profit, loss of business,
depletion of goodwill and the like loss) caused by the Equipment
whether
prior to , at or any time after Commissioning to the Site, the Equipment,
the Existing Plant and the Subcontractor’s personnel.
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| 14.4 |
For
the avoidance of doubt CLP agrees that its only remedy under this
Agreement (save in the case of the Subcontractor’s wilful default) shall
be the right of termination (if any) under Clause
8.
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| 15. |
RELATIONSHIP
OF THE PARTIES
|
Nothing
in this Agreement shall constitute or be deemed to constitute, make or otherwise
give effect to a joint venture, pooling arrangement or partnership between
the
parties or create any relationship of employment between the
parties.
| 16. |
DISPUTES
|
| 16.1 |
Subject
to clauses
7.5
and 7.6,
if a dispute of any kind whatsoever arises between the parties in
connection with or arising out of this Agreement it shall be settled
in
accordance with the following
provisions.
|
| 16.2 |
For
the purpose of this Clause, a dispute shall be deemed to arise when
one
party serves on the other a notice in writing (hereinafter called
the
"Notice
of Dispute")
stating the nature of the dispute and requiring the dispute to be
considered by an adjudicator who, if not agreed upon between parties,
shall be appointed by the Chairman of the Chartered Institute of
Arbitrators in England upon application by either of them. The dispute
shall thereafter be referred and considered by such adjudicator in
accordance with the procedure under the TeCSA Adjudication Rules
2002,
version 2.0 or any amendment or modification thereof being in force
at the
date of such notice. The recommendation of the adjudicator shall
be deemed
to have been accepted in settlement of the dispute unless written
Notice
to Refer under Clause 16.3
is
served within one calendar month of the receipt of the adjudicator's
recommendation.
|
| 16.3 |
Where
either party is dissatisfied with any recommendation of an adjudicator
appointed under Clause
16.2
then such party may within one calendar month of receipt of the
adjudicator's recommendation refer the dispute to the jurisdiction
of the
court by service a written notice (the "Notice
to Refer")
on the other party.
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| 17. |
NOTICES
|
| 17.1 |
Any
notice or other communication requiring to be given or served under
or in
connection with this Agreement shall be in writing and shall be
sufficiently given or served if
delivered:-
|
|
(a)
|
in
the case of CLP to:
|
Xxxx
00-00 Xxxxxxxxxxx
Xxxxxx
Technology Exchange
Xxx
Xxxx
Xxxxxx
XX0
0XX
Fax: 00000
000
000
Attention: Xxxxxxx
Xxxxxxxxx
Email: xxxxxxxxx@xxxxxxxxxxxx.xxx
|
(b)
|
in
the case of the Subcontractor to:
|
Xxxx
00-00 Xxxxxxxxxxx
Xxxxxx
Technology Exchange
Xxx
Xxxx
Xxxxxx
XX0
0XX
Fax: 00000
000
000
Attention:
Xxxx
Xxxxxxxxx
Email:
xxxxxxxxxx@xxxxxxxxxxxx.xxx
or
to
such alternative address, fax number, email address or person as any party
may
nominate by notice to the others given in accordance with this Clause
17.
| 17.2 |
Any
notice shall be delivered by hand or sent by legible facsimile
transmission or pre-paid first class post (airmail if sent to or
from an
address outside the United Kingdom) and if delivered by hand or sent
by
legible facsimile or email transmission shall conclusively be deemed
to
have been given or served at the time of despatch and if sent by
post
aforesaid shall conclusively be deemed to have been received 48 hours
from
the time of posting (or 72 hours if sent to or from an address outside
the
United Kingdom).
|
| 18. |
FORCE
MAJEURE
|
Notwithstanding
any other provision in this Agreement no default delay or failure to perform
on
the part of any party shall be considered a breach of this Agreement if such
default delay or failure to perform:-
| 18.1 |
is
shown to be due to termination of the Development Services Agreement
or
due to some cause deemed a Force Majeure event under the Development
Services Agreement; or
|
| 18.2 |
is
shown to be due entirely to cause beyond the direct control of the
party
charged with such default, including, but not limited to such events
as
riots, civil embargoes, storms, floods, fire, earthquakes, acts of
God or
the public enemy, an act of terrorism, national emergency or nuclear
disasters, strike, lockout, labour unrest (affecting the performance
of
this agreement) provided that where such incident extends to employees
of
the Subcontractor it is part of a national, industry - wide action.
|
In
the
case of the occurrence of such event the time for performance required by either
party under this Agreement shall be extended for any period during which
performance is prevented by such event. However, any other party may terminate
this Agreement by notice if such event preventing performance continues for
more
than 60 continuous days.
| 19. |
GOVERNING
LAW
|
This
Agreement shall be governed by and interpreted in accordance with English Law
and each of the parties hereto submits to the non-exclusive jurisdiction of
the
English Courts.
| 20. |
THIRD
PARTIES
|
The
parties to this Agreement do not intend that any of its terms will be
enforceable by virtue of the Contracts (Rights of Third Parties) Xxx 0000 by
any
person not a party to it.
IN
WITNESS whereof the parties have entered into this Agreement the day and year
first above written.
bir_corp\719017\3
SCHEDULE
1
(The
Project Companies)
|
Name
|
Registered
Number
|
Place
of Incorporation
|
|
Garlaff
Energy Limited
|
SC195540
|
Scotland
|
|
Xxxxxx
Bridge Energy Limited
|
03754257
|
England
|
|
Chelson
Meadow Energy Limited
|
03363593
|
England
|
|
Auchencarroch
Energy Limited
|
SC195539
|
Scotland
|
|
Xxxxxxx
Road Energy Limited
|
03754365
|
England
|
|
Bellhouse
Energy Limited
|
03466081
|
England
|
|
Beetley
Energy Limited
|
04939140
|
England
|
|
Snetterton
Energy Limited
|
04939139
|
England
|
|
Funtley
Energy Limited
|
5188256
|
England
|
The
registered office of each above-mentioned Project Company registered in England
is situate at 14 & 15 Queensbrook, Bolton Technology Exchange, Xxx Xxxx,
Xxxxxx, Xxxxxxx Xxxxxxxxxx XX0 0XX and for any Project Company registered in
Scotland is Princes Exchange, 0 Xxxx Xxxx Xxxxxx, Xxxxxxxxx, XX0
0XX.
bir_corp\719017\3
SCHEDULE
2
(The
Project Timetable)
|
Project
Company
|
Number
of Engine(s)
|
Engine
Capacity
|
Stage
|
Estimated
Date
|
|
Garlaff
Energy Limited
|
3
|
3MW
|
Engines
operational
|
|
|
Xxxxxx
Bridge Energy Limited
|
1
|
1.3MW
|
Engines
operational
|
|
|
Xxxxxx
Bridge Energy Limited
|
1
|
1.3MW
|
In
Commissioning
|
November
00
|
|
Xxxxxxx
Xxxxxx Energy Limited
|
1
|
1MW
|
Engines
operational
|
September
04
|
|
Auchencarroch
Energy Limited
|
1
|
1MW
|
Under
construction
|
February
00
|
|
Xxxxxxx
Xxxx Energy Limited
|
1
|
1MW
|
Engines
operational
|
|
|
Bellhouse
Energy Limited
|
1
|
0.6MW
|
Under
construction
|
February
05
|
|
Beetley
Energy Limited
|
1
|
1MW
|
In
Commissioning
|
December
04
|
|
Snetterton
Energy Limited
|
1
|
0.8MW
|
Under
construction
|
February
04
|
|
Funtley
Energy Limited
|
1
|
0.6MW
|
June
04
|
bir_corp\719017\3
SCHEDULE
3
(Services
to be carried out)
The
principal objective of the Services is to bring about, on behalf of CLP, the
Commissioning of the Equipment at the Site of each Project Company causing
the
minimum amount of disruption to the operation of the Existing Plant as possible
and in that regard the following shall comprise the Services and be carried
out
by the Subcontractor in respect of each New Project accordingly:
1.1 managing
and administering compliance with the Project Timetable and Project Budget
in
relation to a New Project;
1.2 preparing
the detailed design specification and plans of the Equipment to be installed
or
constructed at each Site, together with such additional plant and infrastructure
as may be necessary including, without limitation and for the avoidance of
doubt, separate metering and connection for the New Project and the Existing
Plant;
1.3 the
procurement of the Equipment and such additional plant and infrastructure as
may
be necessary;
1.4 the
construction and installation of the Equipment;
1.5 the
testing of the Equipment to ensure it safely exports electricity to the National
Grid;
1.6 engaging
the services of, supervising and co-ordinating the third party service providers
engaged in respect of a New Project;
1.7 advising
in connection with the obtaining of all necessary planning and other consents
for a New Project;
1.8 advising
on and carrying out the general administration of the Commissioning of a New
Project;
1.9 providing,
at all times, information in relation to the Site for a New Project and the
New
Project generally including copies of all relevant documents, plans and
specifications, consents and reports and keeping CLP informed of the progress
made in respect of bringing about of the Commissioning of a New
Project;
1.10 monitoring
on behalf of CLP compliance with statutory, local authority, building control
and fire officer consents and requirements required to be complied with in
the
course of bringing about the Commissioning of its New Project;
1.11 monitoring
the cost control systems and budgets for each New Project;
1.12 endeavouring
to carry out each New Project substantially in accordance with its Project
Timetable and Project Budget but at all times monitoring the same;
1.13 chairing
and minuting site meetings on behalf of a Project Company; and
1.14 providing
such assistance and advice in respect of a New Project as could reasonably
be
expected of a project co-ordinator.
bir_corp\719017\3
SIGNED
by )
for
and
on behalf
of
)
CLP
DEVELOPMENTS
LIMITED
)
In
the
presence of:
SIGNED
by )
for
and
on behalf
of
)
CLP
ENVIROGAS
LIMITED
)
In
the
presence of:
